ASJA Contracts Watch News


Subject: ASJA Contracts Watch News
From: Emanuella Giavarra (ecup.secr@dial.pipex.com)
Date: to 21 touko  1998 - 20:25:03 EEST


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ASJA CONTRACTS WATCH 58 (vol 5, #4) CW980520 May 20, 1998

News of the NEW YORK TIMES, NEW CHOICES, WEIDER PUBLICATIONS, SIRS,
TELEMEDIA, lawsuits against PRIVATE CLUBS and UNCOVER, coursepacks
and more...

     * * * * * * * *

NEW YORK TIMES editors have been sending freelance writers a new
version of the newspaper's work-made-for-hire contract. The Times has
joined the list of publishers who no longer ask writers to indemnify
them, which is a point in its favor. But--among other problems--the
greedy rights clause remains, intended to take total ownership of all
articles the writer may ever produce for any section of the paper.
That alone is enough to keep many freelancers away from the Times.

But is this contract--usually presented as "non-negotiable"--really
the last word at the Times? Despite what some supremely loyal Times
editors tell writers, it isn't. Different contracts--offensive, but
less so--are still in use. They're usually offered right off the bat
by the Magazine, Book Review and Op-Ed, and after some discussion by
Travel and other sections to writers who refuse to do work made for
hire. Editors are instructed to try for the home run first, but in
general are told not to let the first-offer contract interfere with a
piece or a writer they really want.

                              *****

NEW CHOICES (READER'S DIGEST ASSOCIATION) has added some new wrinkles
to its contract, but word from contributors is that those, as well as
the several old rough spots in the boilerplate, continue to be
amendable.

                              *****

As reported in Contracts Watch, January 26, 1998, editors at WEIDER
PUBLICATIONS (FLEX, LIVING FIT, MEN'S FITNESS, SHAPE et al.) have
been acting the tough guy, telling freelancers to sign their
contracts as is or else, on orders from management. A high-up company
official confirmed flatly that "alterations are not acceptable."

But it seems the company has changed its mind. An even higher-up
official--president and CEO Michael Carr--tells Contracts Watch:
"We do want full rights where possible, but we also negotiate
secondary payments. If we want foreign rights, we negotiate that
upfront. Same with electronic. We'd rather just increase the price
and have all rights, but we'll negotiate to pay when and if we
exercise the extra rights."

Applause if Weider licenses to pay per use--so much per foreign
edition, so much per time period online, for example. If
"negotiation" doesn't end up there, the smart freelancer will go back
to striking everything beyond use in a single print edition of the
magazine.

Meanwhile, it's nice to hear that Wieder editors are no longer under
orders to bring in contracts unscathed. Now, if an editor says no
negotiation allowed, the response can be, "That's not what the
president says."

                              *****

SIRS (Social Issues Resource Series) picks up magazine articles for
its CD-ROM and online databases, sold by subscription to schools and
libraries. Writers report that SIRS typically offers as little as $75
or $100 for permanent rights, but comfortably negotiates fees up to
several times and adds a time limit on request.

Recent SIRS cover letters have referred to "print and electronic"
rights, although the accompanying permissions form covered electronic
only. When ASJA pointed out the discrepancy, the SIRS permissions
manager explained that print rights are wanted for just some
selections, for an annual "best of" print edition. Within hours, she
phoned back to say that SIRS would now make its print picks in
advance and offer authors one of two forms, covering either
electronic or electronic plus print use. A separate fee for print,
the permissions manager said, would be part of negotiations if the
writer brings it up. Same with a time limit on electronic use. "We
prefer three to five years," she added, "but we're open."

Of course, writers who don't retain their rights don't get to
negotiate with SIRS, or with other reusers. Their publishers do.

                              *****

TELEMEDIA, publisher of CANADIAN LIVING, HARROWSMITH, TV GUIDE/CANADA
and others, has released its long-awaited revised contract. A
corporate "Dear Contributor" letter rhapsodizes about the company's
"lengthy and positive relationship with the creative community in an
environment of mutual respect and trust" and adds that the company
"consulted both PWAC and CAPIC"--the Periodical Writers Association
of Canada and the Canadian Association of Photographers and
Illustrators in Communications.

What the letter doesn't say is that after two years of talks,
Telemedia stopped consulting when an impasse was reached. PWAC and
CAPIC have jointly called the contract "a blatant rights grab" and
"fatally flawed." They flatly urge freelancers to reject it.

                              *****

PWAC also reports two recent settlements of small claims copyright
infringement cases: one that brought a writer several hundred
dollars from the HALIFAX CHRONICLE-HERALD for unauthorized CD-ROM
database use, the other several thousand from ITP NELSON for material
used in a book. Canadian law allows copyright cases to be heard in
small claims courts; in the U.S., copyright is a matter for federal
courts, although suits charging breach of contract may be heard in
small claims or other state courts.

                              *****

Example: In a recent case, a freelance writer traveled from New York
to Dallas to win a small claims judgment against PRIVATE CLUBS for
separating recipes from her manuscript and printing them under the
byline of the chefs who had suggested them. In a three-hour trial,
the writer showed the court what the chefs had submitted, her
manuscript with the rough recipes reworked, and the versions
published under the chefs' names. The writer argued that the recipes
as published were essentially her work. The judge agreed.

The victorious writer told Contracts Watch: "I collected the cost of
the trip to court many times over."

                              *****

Five freelance writers who are suing UNCOVER, the fax reprint
service, lost their bid for a preliminary injunction that would have
stopped the service's operations cold. Discovery is continuing in
federal court in San Francisco. Michael Traynor, a partner in Cooley
Godward, the San Francisco law firm representing UnCover, says early
settlement talks have stopped but "the door is open, certainly."

                              *****

Postscript: The Michigan copy shop that lost a major court battle in
1996 for using book excerpts in coursepacks without permission has
folded. Jim Smith, whose Michigan Document Services supplied the
Michigan State campus for 18 years, went out with a blast at "the
big shots"--publishers who sued him for copyright infringement when
he took a stance apart from his competitors by advertising
coursepacks without permission hassles and fees. The business, he
said, isn't "economically viable."

Smith and supportive student editorialists at the Michigan Daily
missed the fact that other copy shops around the country manage to
stay in business even when they follow the law, and that it isn't
just big, bad publishers who collect permission fees for coursepacks;
often--when they have good contracts--authors collect a share. The
publisher plaintiffs, backed in their lawsuit by the Association of
American Publishers, also found support from four major writers'
organizations: ASJA, the Authors Guild, the Authors Registry, and the
Text and Academic Authors.

     * * * * * * * *

THE AMERICAN SOCIETY OF JOURNALISTS AND AUTHORS encourages
reproduction and distribution of this document for the benefit of
freelance writers. Reprint or post as many items as you wish, but
please credit ASJA for the information and don't change the content.

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                 Subject: CONTRACTS WATCH
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BEFORE YOU SIGN, check out your magazine or newspaper and its parent
company in ASJA Contracts Watch. A complete, searchable archive is
available on the World Wide Web. Find it--with other valuable
information and tips on freelance contracts, rights and copyright--at
the Web address below.

TO ASJA MEMBER AND OTHERS who send contracts, information and
scuttlebutt: Thanks. Inquiries from all are welcome.
     Contracts Committee, ASJA
     1501 Broadway, New York, NY 10036
     tel 212-997-0947
     fax 212-768-7414
     e-mail ASJA@compuserve.com
     Web page http://www.asja.org/cwpage.htm



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